Longs Stores, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1961

129 N.L.R.B. 1495 (N.L.R.B. 1961)

LONGS STORES, INC. 1495
made the customarily required showing of interest . We would direct
the election.9
6 See, e.g., Harvey Paper Products Company, etc ., 117 NLRB 26 . The majority avoids
the issue , we believe , by centering its attack on the Harvey case which it states is in-
consistent with Sutherland Paper Co., 122 NLRB 1284 . Our citation of Harvey, as already
plainly shown, is illustrative of a longstanding and fundamental principle reflected in
the lead Zia case, to which, indeed, our colleagues advert as authority . Sutherland cer-
tainly did not in fact or contemplation overrule Zia and the many other like eases follow-
ing its basic rule. Nor Is National Cash Register Co., 119 NLRB 486, also cited by our
colleagues , of any possible assistance to the majority position . There, severance was
.sought of a craft unit composed of employees already represented in several different
existing units. Under the Zia rule , the petition was properly dismissed because an ade-
quate showing of interest was not established for each of the represented groups sought
to be combined in the craft unit. Here, as noted, the Petitioner 's showing of interest is
perfectly adequate within the rule.
Longs Stores , Inc., a California corporation ,' Petitioner and
Retail Clerks Union, Local 1222, Retail Clerks International
Association, AFL-CIO. Cases Nos. 21 RM-678 and 21 ISM-679.
January 31, 1961
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before Max Dauber,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.2
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Jenkins, and Fanning].
Upon the entire record in these cases, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
1 The Employer's name appears as amended at the hearing.
9 The original petitions in these casesrequested elections in units of all sales and stock
employees , including pharmacists , at both the College Grove and Ei Cajon stores of the
Employer. At the hearing , the Employer was permitted to amend the petitions to request
elections in separate units of pharmacists and sales and stock employees at each store, or,
in the alternative , separate overall units of pharmacists and sales and stock employees at
-all four of the Employer 's San Diego County stores. The Union moved to dismiss the
petitions on the ground they are inappropriate on their face because they request elec-
tions in a single unit containing both professional and nonprofessional employees without
.giving the professionals the separate election required by Section 9(b) (1). Therefore, the
Union argues , the notice of bearing was improperly issued and the petitions could not be
amended at the hearing to correct this defect. There is no merit to the Union 's conten-
tions. Section 9(b) (1) of the Act is not a general prohibition against the establishment
of bargaining units composed of both professional and nonprofessional employees . Indeed,
-the Board consistently finds such units appropriate when professional workers indicate in
a separate election that they desire to be included in a larger bargaining unit. As the
amendments simply requested the voting procedure required by the statute, we find they
- were properly permitted. Westinghouse Electric Corporation, 107 NLRB 16.
129 NLRB No. 186.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.'
4. The Employer-Petitioner seeks representation elections in units.
of sales and stock employees and pharmacists, at both its El Cajon
and College Grove, California, retail drugstores. In the alternative,,
the Employer-Petitioner requests a representation election in an over-
all unit of sales and stock employees and pharmacists at all four of
its San Diego County, California, retail drugstores.4 The Union con-
tends that the Employer's alternative request sets forth the most
appropriate unit, but the Union is willing to participate in any elec-
tions that may be directed.
The Employer operates 15 drugstores in the State of California,,
4 of which are located within a 25-mile area in San Diego County.
The Employer and the Union are parties to an existing collective-
bargaining agreement which covers the employees in two of the four
San Diego stores. The other two San Diego stores at El Cajon and
College Grove were opened in July and September 1960, respectively,,
and the employees at these stores are currently unrepresented.
The Employer's operations at El Cajon and College Grove are
characterized by a considerable degree of local autonomy on the part
of the individual stores. Each store manager makes his own deci-
sions as to what goods to purchase and in what amounts. The Em-
ployer's Oakland office issues merchandise memorandums which the.
store managers may follow, but the memorandums are not considered
directions as to what to buy and many items are for sale in one store,
but not in others. The Employer has no central warehouse and each
store keeps its own stock. The only item purchased centrally is the
Employer's private-label liquor and each store decides independently
what quantity it will need each month. Although each store does its
own buying, all accounts are paid by the general office in Oakland.
The Oakland office also keeps a running inventory for all stores,,
and when any one store finds itself with an excess of merchandise, a
trade by invoice between the stores is usually effected and notice of
the transaction is sent to the central office.
The Employer's individual store managers have full control of
hiring and firing. The Employer has no centralized personnel de-
3 In its brief, the Union abandoned the contention made at the hearing, that an existing
contract effective from June 2, 1956, to June 1, 1961, was a bar to an election See
Pacific Coast Association of Pulp and Paper Manufacturers , 121 NLRB 990.
+ The Union's contention that the Employer amended its petitions in a manner that
made it impossible to determine what unit is being requested is without merit Although
the Employer requested separate "units" of sales employees and pharmacists on either a
single-store or mtiltistore basis, It is clear from the record and the Employer 's brief that
what the Employer Is seeking is either a single -store or multistore unit of both sales
employees and pharmacists with the inclusion of the pharmacists depending on their vote
in the separate election required by Section 9(b) (1).
LONGS STORES, INC. 1497
partment, and when an employee is hired, his application becomes a
permanent record in that store and is not forwarded to the Oakland
office. Each store makes up its own weekly payroll, although the
central office does prepare an annual pay statement for income tax
purposes.
Each store manager sets the opening and closing hours of his store
and there is no uniformity in the hours of operation of the Employer's
San Diego stores. Furthermore, each manager determines the hours
.of individual employees and has complete freedom to allow time off,
grant sick leave, and set the vacation schedule. The store managers
.also may vary the prices at which goods are to be sold in their store.
Although the Employer frequently runs one newspaper advertisement
which is paid for by the Oakland office, each manager helps prepare
the ad and each store is charged a proportionate amount for advertis-
ing based on its volume of business.
There is no direct interchange of personnel between stores, except
for pharmacists who are sometimes transferred to new stores. There
are occasional transfers of employees from sales clerk rank to super-
visory status at different stores, but there is no interchange at the
sales employee level.
Although there is a history of collective bargaining on a multistore
basis , the Board normally permits employees at a new operation to
decide whether they wish to be included within a multistore unit .5
Accordingly, in view of the bargaining history and the fact that the
four stores comprise all the Employer' s stores in the same geographical
area ,6 we find that, for the purposes of collective bargaining, the em-
ployees at the El Cajon and College Grove drugstores may appro-
priately be included in the multistore bargaining unit currently rep-
resented by the Union. We shall, therefore, make no unit determina-
tions with respect to the employees at the El Cajon and College Grove
stores at this time, but shall first ascertain the desires of these em-
ployees as expressed in the elections hereinafter directed.
We now turn to a consideration of those employees whose super-
visory status is in issue.
At the Employer's College Grove store, the lobby manager and drug
manager may act as replacements for the manager or assistant man-
ager on four or five occasions a year for periods of a day to 2 weeks,
'and at such times they may exercise the power to hire and fire. These
,employees always have the right independently to assign employees
to work stations, to discipline, and to grant employees time off. Fur-
thermore, they have recommended wage increases in the past and their
recommendations generally have been followed. On these facts, we
a Pay Less Drug Stores, 127 NLRB 160 . And see Krambo Food Stores, Incorporated,
119 NLRB 369, 373.
0 ACis-Wrigley Stores, Inc ., 124 NLRB 200.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that the drug manager and lobby manager at the Employer's
College Grove store are supervisors within the meaning of the Act
and we shall exclude them from the voting group at that store?
At the Employer's El Cajon store, on the other hand, only the store
manager and sundry manager have authority to hire, fire, and dis-
cipline employees. The assistant sundry manager and lobby manager
at El Cajon can make work assignments only after consulting the
manager. They may recommend wage increases, but their recom-
mendations are not always followed. Furthermore, independent in-
vestigation of the facts is always made before the recommendations
of the lobby manager or assistant sundry manager as to discipline are
followed. As the assistant sundry manager and lobby manager at
the Employer's El Cajon store do not possess any of the indicia of
supervisory authority enumerated in Section 2 (11) of the Act, we
shall include them in the voting group at that store.
There are pharmacists employed at both the El Cajon and College
Grove stores. It is clear that these pharmacists are professional em-
ployees within the meaning of the Act. As Section 9 (b) (1) of the
Act precludes the Board from including in a single bargaining unit
professional and nonprofessional employees without according to the
former an opportunity of separately expressing their desires respect-
ing such inclusion, we shall poll the professional employees.
We shall, therefore, direct separate elections in the following voting
groups:
(a) All sales and stock employees at the Employer's College Grove,.
California, drugstore, excluding professional employees (pharma-
cists), office clerical employees, guards, watchmen, the store manager;.
the assistant store manager, drug manager, lobby manager, and super-
visors as defined in the Act.
(b) All professional employees (pharmacists) at the Employer's
College Grove, California, drugstore, excluding all sales and stock
employees, guards, watchmen, the store manager, the assistant store
manager, drug manager, lobby manager, and supervisors as defined in
the Act.
(c) All sales and stock employees including the lobby manager and
assistant sundry manager at the Employer's El Cajon, California,
drugstore, excluding professional employees (pharmacists), office
clerical employees, guards, watchmen, the store manager, sundry man-
ager, and supervisors as defined in the Act.
(d) All professional employees (pharmacists) at the Employer's
El Cajon, California, drugstore, excluding all sales and stock em-
ployees, the lobby and assistant sundry managers, office clerical em-
ployees, guards, watchmen, the store manager, sundry manager, and
supervisors as defined in the Act. The employees in the nonprofes-
4 Katz Drug Company , 123 NLRB 1615.
LONGS STORES, INC. 1499
sional voting groups (a) and (c) will be polled as to whether they
desire to be represented by the Retail Clerks or by no union.
The employees in the professional groups (b) and (d) will be asked
two questions on the ballot : 8
1. Do you desire the professional employees to be included in the
same unit as the nonprofessional employees at the Employer's College
Grove, California (or El Cajon, California, as the case may be), drug-
store for the purposes of collective bargaining?
2. Do you desire to be represented for the purposes of collective
bargaining by Retail Clerks Union Local 1222, Retail Clerks Inter-
national Association, AFL-CIO, or by no union?
If a majority of the professional employees in voting groups (b)
and/or (d) vote "yes" to the first question, indicating their wish to be
included in a unit with the nonprofessional employees, the group or
groups so voting will be included. Their votes on the second question
will then be counted together with the votes of the nonprofessional
groups (a) and/or (c), respectively, to decide whether the employees
desire to be part of the multistore unit. However, if a majority of the
professional voting groups (b) and/or (d) vote against inclusion, the
group or groups so voting will not be included with the nonpro-
fessional employees. Their votes on the second question will then be
separately counted to decide whether they desire the Retail Clerks to
represent them in separate professional units. There is no indication
in the record that the Retail Clerks would not be willing to represent
the professional employees separately if these employees vote for
separate representation. However, if the Retail Clerks does not desire
to represent the professional employees in separate units even if those
employees vote for such representation, that union may notify the
Regional Director to that effect within 10 days of this Decision and
Direction of Elections.
Our unit determination is based, in part, then, upon the results of
the election among the professional employees. However, we now
make the following findings :
(1) If a majority of the professional employees in voting groups
(b) and/or (d) vote for inclusion in a unit with nonprofessional em-
ployees, and if a majority of the employees in combined voting groups
(a) and (b), and/or (c) and (d) vote for the Union, they will be
taken to have indicated their desire to be a part of the multistore
unit, and the Union may bargain for them as part of its existing unit-
(2) If a majority of the professional employees in voting groups
(b) and/or (d) vote against inclusion in a unit with nonprofessional
employees or vote against representation by the Union, and if a ma-
jority of the employees in voting groups (a) and/or (c) select the
Union, the employees in the latter groups will be taken to have indi-
S See Miller Brewing Company, 117 NLRB 1, 4.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cated their desire to be a part of the multistore unit, and the
Union may bargain for the employees in voting groups (a) and/or
^(c) as part of its existing unit.
(3) If a majority of the professional employees in voting groups
1(b) and/or (d) do not vote for inclusion in the unit with nonpro-
fessional employees but vote to be represented by the Union, the Re-
gional Director conducting the elections is instructed to issue separate
certifications of representatives to the Union as the representative of
all pharmacists at the Employer's El Cajon, California (or College
Grove, California, as the case may be), retail drugstore, excluding all
other employees and supervisors as defined in the Act, units which the
Board, in such circumstances, finds to be appropriate for the purposes
of collective bargaining.
(4) In all other circumstances, the employees at the Employer's El
Cajon and/or College Grove drugstores, professional and nonpro-
fessional, shall remain unrepresented.
[Text of Direction of Elections omitted from publication.]
Tyree's Inc. and Teamsters Local Union No. 79 , affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Petitioner. Case No. 12-RC-
1038. January 31, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Alan D. Greene,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.'
The ,Employer moved to dismiss the petition on the ground that the Petitioner had
made no demand for recognition as bargaining representative of the employees involved.
We deny this motion. The Board has held that the filing of a petition in itself constitutes
129 NLRB No. 183.